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decided: January 12, 1989.


Appeal from the Order of the Crime Victims Compensation Board in the case of Re: Barbara Ann Gill Ortell, Victim, Claim No. 82-1219-B.


Peter B. Foster, Pinskey & Foster, for petitioner.

Linda C. Barrett, for respondent.

Judges Doyle, Barry and McGinley, sitting as a panel of three. Opinion by Judge Doyle. Judge MacPhail did not participate in the decision in this case. Dissenting Opinion by Judge Barry.

Author: Doyle

[ 122 Pa. Commw. Page 584]

This is an appeal*fn1 by Barbara Ann Gill Ortell (Claimant) from an order of the Crime Victims Compensation Board (Board) denying her claim for compensation for out-of-pocket losses stemming from a criminal attack upon her by one Albert West.

The Board found that, on June 24, 1982 at approximately 11:00 a.m., Claimant, then age thirty-six, became involved in an altercation with West, who was her landlord. During this altercation Claimant was pushed by West and fell, prompting her complaints of head and back pain. Prior to this incident Claimant and West had been engaged in a telephone conversation involving yelling and arguing. At the conclusion of the telephone call Claimant left her residence in an "angry" mood and walked approximately twenty-five feet (next door) to confront West. The argument then resumed and the above described altercation ensued.

[ 122 Pa. Commw. Page 585]

The Board denied Claimant's claim for compensation finding that she had acted unreasonably when she failed to avoid a physical confrontation and, hence, that her conduct contributed to her injury. It also determined that Claimant had not incurred out-of-pocket losses of $25,000.00 to $27,000.00 as she claimed. It noted particularly that she had provided no medical verification for her alleged losses, that her x-ray's revealed no serious injury, and that the only evidence of costs she submitted was in the form of "slips of paper torn from spiral notebooks and bearing handwritten names of persons who allegedly provided services and the amounts allegedly paid."*fn2 No cancelled checks or money orders were submitted.*fn3

Claimant has appealed the denial of compensation to this Court.*fn4

Where, as here, both parties have presented evidence our scope of review is limited to determining whether the necessary findings of fact are supported by substantial evidence and whether there has been a constitutional

[ 122 Pa. Commw. Page 586]

    violation or an error of law. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987). On appeal Claimant presents three arguments which we shall examine seriatim. She contends first that the regulation which the Board used to disqualify her from receiving compensation is in conflict with the governing statute. It is, of course, well settled that an administrative agency's interpretation of its own regulation is controlling, and unless that interpretation is plainly erroneous or inconsistent with the regulation, or the regulation is inconsistent with the statute under which it is promulgated, the regulation will be upheld. E. Smalis Painting Co., Inc. v. Department of Transportation, 70 Pa. Commonwealth Ct. 90, 452 A.2d 601 (1982). The regulation in question reads in pertinent part as follows:

A claimant may be ineligible if the Board or Board member finds that one of the following applies:

(i) the victim initiated, consented to, provoked, agitated, prolonged or reasonably failed to avoid a physical confrontation with the offender.

37 Pa. Code § 191.9(k)(l)(i).

The Act of April 9, 1929, P.L. 177, as amended, Sections 477-479.5, is commonly referred to as the Crime Victims Compensation Act (Act). It sets forth its purpose as follows:

It is the declared purpose of the General Assembly in this act to promote the public welfare by establishing a means of providing for the financial losses of the innocent victims of crime or their surviving dependents and intervenors acting to prevent the commission of crime or to assist

[ 122 Pa. Commw. Page 587]

    in the apprehension of suspected criminals.*fn5 (Emphasis added.)

Thus, in order to receive compensation one must be the innocent victim of a crime. It is the requirement of innocence which the Board's regulation seeks to address. The Board has been given legislative authority to promulgate rules and regulations to carry out the provisions of the Act. See Section 477.2 of the Act, 71 P.S. § 180-7.2.*fn6 We hold that Regulation 191.9(k)(l)(i) is in accordance with this legislative mandate and is not in any way contrary to the Act's declared purpose. Further we uphold the Board's determination that Claimant's conduct indicated a failure to avoid physical confrontation with West.

Claimant contends, however, that the regulation is contrary to established caselaw regarding self-defense and provocation. Even so, this is not fatal to the regulation. The legislature is under no obligation to compensate crime victims at all. If it determines to do so, it can certainly attach reasonable conditions to the grant of compensation. Here, both the Act and the regulation seek to discourage rash behavior and vigilante justice. This is certainly a lawful goal, and thus, the condition of innocence, which is imposed upon the victim by statute and regulation, is permissible.

Claimant next contends that the regulation is ambiguous. Quite frankly, we can see nothing ambiguous and dismiss this argument as patently frivolous.

Finally, Claimant contends that the Board committed error in determining that she had failed to meet her burden to establish her actual losses. It is well settled that a claimant bears the burden in this regard.

[ 122 Pa. Commw. Page 588]

I must also disagree with the majority's conclusion that claimant did not prove that she suffered an out-of-pocket loss as a result of the criminal incident. Claimant presented to the Board a bill from Berwick Hospital for $289.50 for an emergency room visit on the date of the assault, as well as the medical record for that visit. Given the injuries that the medical record indicated the claimant suffered on that date and the criminal incident described in her testimony before the Board hearing examiner, the causal connection between the former and the latter was obvious, as was the fact that this emergency room visit was reasonably necessary because of those injuries. A remand unfortunately would be necessary to determine if any part of the loss was not covered by insurance so as to qualify as an out-of-pocket loss, as that term is defined in Section 477 of the Administrative Code, 71 P.S. § 180-7 (one which is unreimbursed or unreimbursable).

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